Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28392/95

by Jose Luis VELITA FLORES

against Sweden

The European Commission of Human Rights sitting in private on

14 September 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 March 1995 by

Jose Luis VELITA FLORES against Sweden and registered on 31 August 1995

under file No. 28392/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

THE FACTS

The applicant is a Peruvian citizen, born in 1970 and currently

in hiding in Sweden. He is represented by Mr. Per Stadig, a lawyer in

Stockholm.

Particular circumstances of the case

The applicant left Peru in November 1992, allegedly fearing

harassment and arrests on suspicions of terrorism. He arrived in Sweden

on 30 November 1992 and requested asylum on 2 December 1992. In his

asylum request he alleged that his life would be in danger, should he

be returned to Peru. He alleged that he had been working as a press and

propaganda secretary to the youth branch of a legally recognised party.

As a result he had been harassed both by the police and a terrorist

group. He had been arrested on 2 July 1992 in connection with a

demonstration and accused of being a terrorist. He had been released

after three days following pressure mounted by a students'

organisation. In September 1992 his home had been searched and he had

received anonymous death threats by mail. His father, who had refused

to continue cooperating with the terrorists, had allegedly been killed.

His father's activities had been the cause of the harassment of

himself. He had left Peru with a valid passport and with the help of

a friend at the passport control.

On 27 May 1993 the applicant's asylum request was rejected after

an oral hearing before the National Immigration Board (Statens

invandrarverk). The Board considered that the arrest invoked by the

applicant had been of a short duration and bore the character of an

individual incident. Having regard to his activities in Peru, the Board

found that his fears concerning a return to that country were

exaggerated. The Board also noted that on arrival in Sweden the

applicant had possessed no passport. When reporting the loss of his

passport to the Swedish police, he had stated having entered the

country as a tourist. This contradicted his subsequent asylum request.

In his appeal to the Aliens Appeals Board (Utlänningsnämnden) the

applicant submitted a certificate of membership in Partido Aprista

Peruano ("APRA") and a certificate showing that he was studying at a

university in Lima. He submitted that, if expelled, he would

immediately be arrested and accused of being a member of the terrorist

organisation "The Shining Path" ("Sendero Luminoso").

On 2 May 1994 the Aliens Appeals Board (Utlänningsnämnden)

rejected the applicant's appeal.

In August 1994 the applicant requested a residence permit in

Sweden on humanitarian grounds, referring to a medical report stating

that he was suffering from depression and paranoia but noting that he

had not disclosed any concrete suicidal plans.

On 8 September 1994 the Aliens Appeals Board rejected the

applicant's new request after having heard Dr. Peter Nordström, a

psychiatrist and one of the experts normally consulted by the Board in

cases of this kind (förtroendeläkare).

Soon thereafter the applicant lodged a further request with the

Aliens Appeals Board for a residence permit on humanitarian grounds,

again invoking his mental state. He had again sought treatment in a

hospital for the mentally ill and had been considered to suffer from

a paranoid psychosis.

The Aliens Appeals Board again heard Dr. Nordström, whose report

of 24 October 1994 contains, inter alia, the following information: On

13 September 1994 the applicant had, accompanied by his sister, sought

emergency psychiatric care after he had attempted to throw himself in

front of a bus and on another occasion in front of a subway train. He

had also attempted to slash his wrists. His relatives and friend had

allegedly prevented him from carrying out the suicide attempts. The

doctor examining him after the slashing-incident had noted a 20

centimetre scar on one of his arms caused by "scratching" by a piece

of glass. The applicant had been admitted for care but had left the

hospital on 21 September 1994.

In his report Dr. Nordström concluded that there existed certain,

at least temporary, medical obstacles to enforcing the expulsion order

concerning the applicant. He considered that enforcement of the

expulsion order would entail a certain risk of suicidal acts on the

part of the applicant. Dr. Nordström therefore indicated that

psychiatric expert assistance would seem necessary during an

enforcement attempt and that further care of the applicant should

possibly be planned in Peru.

On 12 December 1994 the Aliens Appeals Board rejected the

applicant's request. It noted that he had been voluntarily admitted for

hospital care in Sweden and had been granted a number of day and

weekend leaves from the hospital where he had been staying. Moreover,

the medication and care which he was in need of would also be available

in Peru.

Subsequently the applicant requested a reconsideration of the

Board's decision of 12 December 1994, now invoking a medical report of

4 January 1995 according to which he had been suffering from a

psychosis ever since he had been notified of that decision.

On 2 March 1995 the Aliens Appeals Board dismissed the request

for a reconsideration of its decision of 12 December 1994 and rejected

the applicant's claim in so far as it amounted to a renewed request for

a residence permit. In the last-mentioned respect the Board in essence

upheld the reasons invoked in its decision of 12 December 1994.

According to a further medical report of 21 March 1995 by

Dr. Michael Brune, a psychiatrist and neurologist, the applicant's

mental state had further deteriorated. He had been suffering from a

psychosis since the summer of 1994. He had become increasingly

paranoid, suspecting, for instance, that his sister was serving him

human meat. He had continuously been expressing suicidal thoughts. He

was clearly in need of hospital care, but Dr. Brune had hesitated to

order his compulsory mental care in view of the trauma this could

cause. Dr. Brune concluded that enforcement of the expulsion order

would further aggravate the applicant's mental state.

According to a further report of 24 March 1995, the applicant had

visited Dr. Brune on that day. During his visit he had seen police cars

and officers in the street and had immediately feared being apprehended

in Dr. Brune's office. He had then shown Dr. Brune a razor blade with

which he had threatened to "slice himself up", should the police enter

the premises. Eventually, he had been convinced by Dr. Brune that the

police had not been called there to apprehend him and had agreed to

hand over the razor blade to Dr. Brune.

The following information appears in a further report by

Dr. Brune dated 21 June 1995: On 12 June 1995 the applicant had

voluntarily sought care at the Emergency Psychiatric Clinic of the

Karolinska Hospital and had been admitted. On 13 June 1995 he had been

transferred to another hospital but there he had been informed that he

should return to the Karolinska Hospital. Meanwhile, the police had

received information about his care and whereabouts. On his return to

the Karolinska Hospital he had either noticed the presence of police

officers awaiting his return or had a paranoid illusion. As a result

he had left the hospital area and instead gone to stay with his sister.

On 18 June 1995 the applicant and his sister had visited Dr. Brune.

According to the sister, the applicant had been carrying a knife in her

flat. He had been threatening her and her baby daughter with the knife

and she had had to lock her bedroom door so as to be safe in the night-

time. He had failed to follow medical prescriptions and had accused her

and Dr. Brune of being "traitors".

In his report of 21 June 1995 Dr. Brune concluded that the

applicant's situation could have catastrophic consequences for himself

or others, unless he could be given adequate care. He was clearly in

need of institutional psychiatric care but Dr. Brune estimated that

resorting to police assistance so as to have him compulsorily placed

in such care would not be in the applicant's best interests.

According to a letter from the President of the Peruvian

Association of Physicians to Dr. Brune dated 16 June 1995, a poor

person without a family suffering from chronic schizophrenia has no

possibility of obtaining adequate care in Peru.

Relevant domestic law

According to the 1989 Aliens Act (utlänningslag 1989:529), a

residence permit may be granted to an alien for humanitarian reasons

(chapter 2, section 4, subsection 1 (2)). A so-called new request for

a residence permit may only be granted if the request, lodged by an

alien who is to be refused entry or expelled by a decision which has

acquired legal force, is based on new circumstances and provided the

applicant is either entitled to asylum or there are weighty

humanitarian reasons for allowing him or her to stay in Sweden

(chapter 2, section 5, subsection 3). As from 1 July 1994 a request

pursuant to chapter 2, section 5, shall be lodged with the Aliens

Appeals Board.

When considering whether to refuse an alien entry or to issue an

expulsion order, the authorities must examine, pursuant to chapter 8,

sections 1-4, of the Aliens Act, whether the alien can be returned to a

particular country or whether there are other special obstacles

to the enforcement of such a decision. Any necessary instructions

regarding the enforcement order shall be given by the Government, the

Aliens Appeals Board or the National Immigration Board in their

decisions (chapter 4, section 12).

If the enforcement meets no obstacles under chapter 8, an alien

is to be expelled or returned to the country of origin or, if possible,

to the country from which he or she came to Sweden. If the decision

cannot be enforced in one of these manners or if special reasons exist,

the alien may be sent to another country (chapter 8, section 5).

If the enforcing authority finds that the enforcement cannot be

carried out or that further information is needed, it shall notify the

National Immigration Board accordingly. In such a case, the Board may

decide on the question of enforcement or take such other measures as

are necessary (chapter 8, section 13).

If an expulsion order or a decision refusing entry contains no

instructions regarding its enforcement or if it is evident that the

instructions cannot be complied with, the enforcing authority shall

decide how to carry out the enforcement, provided it does not proceed

in accordance with chapter 8, section 13 of the Aliens Act (chapter 7,

section 2 of the 1989 Aliens Ordinance (utlänningsförordning

1989:547)).

When considering a new request for a residence permit lodged by

an alien who is to be expelled according to a decision which has

acquired legal force, the National Immigration Board (and in certain

cases also the Government) may stay the enforcement of that decision.

For particular reasons the Board may also otherwise stay enforcement

(chapter 8, section 10). Similarly, the Aliens Appeals Board may decide

to stay the enforcement of a previous expulsion order.

The National Immigration Board or the Aliens Appeals Board may

refer a matter to the Government if, for instance, its outcome is of

particular importance to the future application of the Aliens Act or

if other particular circumstances warrant the Government's

consideration of the case (chapter 7, section 11).

According to the 1991 Act on Compulsory Mental Care (lag

1991:1128 om psykiatrisk tvångsvård), such care shall be terminated at

the request of the competent police authority whenever the person

placed in care is ordered to be expelled. This presupposes, however,

that the Chief Physician is of the opinion that the alien's condition

allows enforcement to take place and consequently grants the request

(section 29; Government Bill no. 1190/91: 58, appendix 1, p. 270). No

appeal lies against the Chief Physician's decision upon a request made

by the enforcing authority (section 33 of the 1991 Act).

COMPLAINT

The applicant complains that his expulsion to Peru would, if

presently enforced, violate Article 3 of the Convention on account of

his current state of health which has allegedly deteriorated

significantly during the spring and summer of 1995. Reference is made,

in particular, to certain suicide attempts. He recalls that

the reports submitted to the Aliens Appeals Board by Dr. Nordström have

been based merely on the already existing written documentation of the

applicant's health. However, even according to this expert an

enforcement would entail a risk to the applicant's health. The

applicant furthermore submits that even if he were placed in compulsory

psychiatric care Swedish law would not prevent enforcement of the

expulsion order. As a result he does not dare to seek adequate

psychiatric care in Sweden. Nor can his need of adequate care on his

return to Peru be guaranteed.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 March 1995 and registered on

31 August 1995.

On 12 April 1995 the Commission decided not to indicate to the

respondent Government that it would be desirable in the interest of the

parties and the proper conduct of the proceedings not to enforce the

expulsion order concerning the applicant until the Commission had

examined the application further.

THE LAW

The applicant complains that his return to Peru would constitute

treatment contrary to Article 3 (Art. 3) of the Convention, having

regard to his current state of health. Article 3 (Art. 3) reads as

follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

The Commission recalls that Contracting States have the right to

control the entry, residence and expulsion of aliens. However,

expulsion by a Contracting State of an asylum seeker may give rise to

an issue under Article 3 (Art. 3) of the Convention, and hence engage

the responsibility of that State under the Convention, where

substantial grounds have been shown for believing that the person

concerned would face a real risk of being subjected to, for instance,

inhuman or degrading treatment in the country to which he is to be

expelled (e.g., Eur. Court H.R., Vilvarajah and Others judgment of

30 October 1991, Series A no. 215, p. 34, paras. 102-103). A mere

possibility of ill-treatment is not in itself sufficient (ibid., p. 37,

para. 111).

The question to be answered in the case in issue is whether the

enforcement at present of the expulsion order concerning the applicant

would in itself involve such a trauma to him that Article 3 (Art. 3)

would be violated (cf. Eur. Court H.R., Cruz Varas and others judgment

of 20 March 1991, Series A no. 201, p. 31, paras. 83-84). The

Commission recalls, however, that ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3

(Art. 3). The assessment of this minimum is relative; it depends on all

the circumstances of the case, such as the nature and context of the

treatment, the manner and method of its execution, its duration, its

physical or mental effects and, in some instance, the sex, age and

state of health of the victim (the above-mentioned Cruz Varas and

others judgment, loc.cit.).

The Commission observes that the enforcement of the expulsion

order concerning the applicant has not been opposed by the expert

consulted by the Aliens Appeals Board apparently on condition that

psychiatric expert assistance would be guaranteed during an actual

enforcement attempt. The Commission assumes that no enforcement will

take place without this condition being met.

The Commission therefore finds that in the circumstances of this

case it is not unreasonable to assume that the applicant's return to

Peru would not amount to a violation of Article 3 (Art. 3). It appears,

moreover, that, should he be placed in compulsory care in Sweden,

enforcement could under no circumstances take place without permission

of the Chief Physician responsible for his care. Given that the

enforcing police authority must request this physician to terminate the

care, he or she still retains a further opportunity to assess, in a

decisive manner, the applicant's state of health at the time of the

planned enforcement.

In these circumstances the Commission cannot find it to have been

shown that the applicant's possible return to Peru would amount to a

violation of Article 3 (Art. 3) on account of his current state of

health.

It follows that the application must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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VELITA FLORES v. SWEDEN

VELITA FLORES v. SWEDEN

LEXI